Federal appeals court rules NLRB recess appointments unconstitutional

The US Circuit Court of Appeals for the Fourth Circuit [official website] ruled [opinion, PDF] Wednesday that US President Barack Obama's recess appointments of three National Labor Relations Board (NLRB) [official website] members was unconstitutional. The court concluded that the president's
three January 4, 2012, appointments to the Board are constitutionally infirm because the appointments were not made during "the Recess of the Senate" under the the Recess Appointments Clause [Art. II, § 5, cl. 4 text] of the US Constitution. The decision invalidates the NLRB rulings that Enterprise Leasing Company Southeast and Huntington Ingalls, Inc. [opinions, PDF] violated federal labor law by refusing to bargain with unions certified by the board to represent the companies' employees. The court is the third federal appeals court to find that the appointments were unconstitutional.

In June the US Supreme Court [official website] agreed [JURIST report] to review the constitutionality of the president's recess power and whether the president's recess-appointment power may be exercised when the Senate is convening every three days in pro forma sessions. The US Court of Appeals for the District of Columbia Circuit [official website] ruled [JURIST report] in January that the recess appointment of three members of the National Labor Relations Board (NLRB) [official website] by Obama was unconstitutional, and the government appealed [JURIST report]. The case was brought by a bottler and distributor of Pepsi-Cola products in Washington state challenging the NLRB after the Board affirmed a decision that the distributor violated the National Labor Relations Act (NLRA) [text]. In May the US Court of Appeals for the Third Circuit [official website] issued an opinion [text, PDF] mirroring the reasoning from the DC Circuit. In addition, two business advocacy groups filed motions contesting the constitutionality of the president's recess appointments [JURIST reports] in January 2012. The motions were filed in relation to the groups' ongoing suit challenging the NLRB mandate that rights to unionize [JURIST report] be posted in all workplaces. The US Department of Justice (DOJ) [official website] defended the use of recess appointments [CRS backgrounder, PDF] by Obama immediately after his announcement. Some experts argue that recess appointments have regularly been used by presidents [JURIST op-ed] since George Washington. It is only a relatively recent practice that obstructionists have begun holding perfunctory pro forma sessions every three days while the Senate is on recess in order to block recess appointments.

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